Joint Committee on the Draft Mental Incapacity Bill Written Evidence

77.Memorandum from Eli Lilly and Company Ltd (MIB 737)


  1.  Lilly welcomes the publication of the Draft Mental Incapacity Bill. It has long been recognised that legislation is needed to set out a clear legal framework for making decisions on behalf of people who lack capacity to make decisions for themselves. Our particular area of interest is in the use of advance statements. While we welcome the introduction in the Bill of advance refusals/directives, we believe the legislation should also include provision for advance statements.

  2.  Lilly is one of the world's leading research based pharmaceutical companies. We are committed to researching and developing breakthrough medicines and currently provide treatments for a range of mental health disorders, diabetes, cancer, coronary heart disease, osteoporosis, severe sepsis and erectile dysfunction. Lilly is a top ten supplier of medicines to the NHS by value and as a signatory of the NHS Plan, we are committed to working in partnership with the NHS.


  3.  Lilly strongly supports the Government's aim of increasing choice for patients as we believe people should be fully involved in decisions about their treatment and care. For those who lose capacity, whether on a permanent or fluctuating basis, the ability to make an advance statement is an important means of retaining control and choice. Advance statements allow people to write down when they are well what they would like to happen were they to become unable to take decisions for themselves. They are not necessarily confined to health matters but could detail the individual's preferences in other areas of their life, such as choice about their living arrangements.

  4.  Advance statements can have added benefits when drawn up in consultation with clinicians and carers, as they can assist the development of a positive therapeutic relationship. Advance statements are a way of developing good practice by encouraging professionals to discuss and plan treatment with their patients, and they should be helpful to professionals in making decisions about treatment for a person who has lost capacity. They should also be helpful to family members and carers. The National Institute for Clinical Excellence has recognised the value of advance statements and encouraged their use[4]Similarly, the Government's expert committee on mental health legislation lead by Professor Richardson recommended that provisions should be included in statute and complemented by the Code of Practice to ensure:

    —  the creation of an "advance agreement about care" is routinely considered by care teams and patients; and

    —  that when created these agreements would have sufficient formality to be regarded as proper statements of a patient's capable wishes.


  5.  The Draft Bill does not currently include any explicit reference to advance statements. When discussing the clauses on advance refusals, the Explanatory Notes state "advance statement[s] will form part of the person's `wishes and feelings', and so would have to be considered under the best interests principle in every decision that was taken on behalf of the person who lacked capacity".

  6.  We welcome the principle that the "best interests" of the individual should be paramount in deciding care and treatment, and are pleased that the Bill makes clear that the individual's "wishes and feelings" should be taken into account in determining what is in their best interests.

  7.  However, if a person has made an advance statement it should not be necessary to look at what is in their best interests, as the person has, when capable, said how he/she wishes to be cared for. Their wishes should therefore be complied with, without the need to consider what is in their best interests, unless there are good reasons for not complying (see paragraph 8). One of the principles of capacity is that people can make unwise decisions—so if someone when capable has made it clear what they would like to happen to them if in the future they become incapable, this should be complied with even if this is not considered to be in their best interests. The person's personal choice made when capable and in the full knowledge of what the consequences of that decision is likely to be should be respected.

  8.  Lilly believes the Bill should include a separate clause on advance statements, requiring any advance statement to be followed save in certain circumstances. This proviso is necessary for those cases where it will not be practicable to comply with an advance statement. For example, asking for a particular form of treatment could present major difficulties and healthcare professionals should not be bound to provide the treatment requested if it conflicts with their professional judgment about the most appropriate treatment to give the person. It would therefore not be advisable to give advance statements the same status as advance refusals of treatment. However, consideration could be given to setting out the general circumstances in which advance statements could be overridden. In addition the legislation should require the reasons for not complying with the advance statement to be set out in writing (as in the Mental Health (Care and Treatment) (Scotland) Act 2003) and also state that where there are disputes in connection with advance statements these should be referred to the court.


  9.  Advance statements are important in giving people control and choice over their future care. They express the individual's choices made at the time when he/she had capacity. The Bill should include an additional clause to provide for advance statements and should clearly set out the circumstances in which they can be overridden.

August 2003

4   National Institute for Clinical Excellence (2002), Technology Appraisal Guidance 43: Guidance on the use of newer (atypical) antipsychotic drugs for the treatment of schizophrenia. Back

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